GPS tracker on worker's car challenged in state court

ALBANY -- Planting a GPS device in a government worker's private car is an unjustifiable invasion of privacy, a New York Civil Liberties Union lawyer argued Thursday, urging a midlevel state court to exclude information gathered that way by investigators and order a new hearing for a man fired for time sheet violations.

Attorney Corey Stoughton said the constitutional privacy rights of Michael Cunningham and his family were violated by the month-long tracking in 2008 without a court warrant. He was fired last year after a hearing officer concluded he claimed pay for hours when he wasn't working.

The monitoring continued during evenings, weekends and a family vacation, Stoughton said. The GPS was placed on the car in a state parking lot, where the batteries were also exchanged once, she said.

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"It was their private family car," Stoughton told the five Appellate Division justices. "There's no cause that can justify such an intrusive search."

Assistant Solicitor General Kate Nepveu countered that the tracking was reasonable based on indications that Cunningham was filing bogus records for work, including off-site meetings. "It has the reasonableness pattern of continuing misconduct," she said.

New York's top court ruled in 2009 that police cannot place GPS trackers on suspects' vehicles without first getting a court warrant showing probable cause that the drivers are up to no good.

Appellate Division Justice Edward Spain on Thursday questioned whether there is a difference between using a tracker in criminal cases like that one and administrative cases like Cunningham's. Justices also questioned whether the GPS device could be used if it were turned off during an employee's off hours.

The lawsuit sought a declaration from the state Department of Labor that putting the GPS tracker on Cunningham's family car was a violation against the state constitution's guarantee against unreasonable searches and seizures. Cunningham was director of the Office of Staff and Organizational Development at the department, a post he held for 22 years during almost three decades employed by the state.

The state Office of the Inspector General conducted the investigation at the Labor Department's request. Asked whether the office still uses GPS trackers in its investigations, spokesman John Milgrim said Thursday, "The office uses various tools as appropriate and permitted by law."